My neighbour's tree leans over my property. Although the base of the tree is located on my neighbour's land, the tree is close to the boundary and has grown at an angle into my property. Basically, above 2 metres, the entire tree is located above my property, although there are some high branches that extend back over my neighbour's land.

Based on what I have read on this forum, my understanding is that if a neighbour has a tree that overhangs my property, then I can cut back the branches to the boundary (and no further). I do not need my neighbour's permission, but it is always best to ask. I must offer the branches back to the neighbour, but he has the right to decline. I must bear the cost of cutting the overhanging branches and disposing of the branches, although there is a slim chance that I could recover the costs if I took him to court.

In my case, the tree is subject to a TPO, so I must also obtain the consent from the local council.

After an initial discussion with my neighbour where we both agreed that we wanted the tree significantly reduced, I applied to the council for permission to have it significantly reduced or removed. The local council acknowledged that the tree had lost its visual amenity and agreed that the tree could be removed with the owner's permission. The TPO had been put in place before either my house or my neighbour's house had been built. As a result of development, the tree was no longer visible from a public vantage point.

However, (even though almost the entire tree above our shared 1.8 metre fence is located over my property) my neighbour refused consent to remove the tree. In addition, the local council indicated that, while I had permission to remove the tree with the owner's consent, we did not have permission to trim the tree. We would have to apply for a new consent and we would only be able to trim the tree to the extent that the owner consented.

The owner is now taking the position that they only want the top of the tree lopped. The tree officer has denied my new application to have the tree reduced (to gutter level on our 2 story house) and, consistent with the owner's desire, approved only the topping of the tree.

So the council agreed that the tree could be removed because it had lost its visual amenity. From my perspective, they thus conceded that the tree no longer warranted protection under the TPO regulations. However, as the tree is still subject to the TPO, they are using their powers to deny me my right to cut back overhanging branches to the property boundary. Can they do this?

I asked the council if it shouldn't remove the tree from the protective order as it no longer warranted protection. The tree officer indicated that this was a long drawn out process (particularly as the TPO covered a number of trees) and therefore it was not an option he would consider.

The tree also leans towards and towers over our house and, if it were to fall, it would cause considerable damage and possibly injury/loss of life. However, the tree officer says that any tree could fall and this is not a reason to grant consent.